SAF v. Sacramento in federal lawsuit over Cal. ‘assault weapons’ ban

The Second Amendment Foundation has filed a federal lawsuit seeking to overturn the California ban on so-called “assault weapons,” alleging that the statute is written in such a way as to be unconstitutionally vague and ambiguous to the point that cops can’t tell what is legal and what is not.

There is living proof in the personage of an honorably discharged Marine named Brendan John Richards, who did a tour in Iraq. He has been arrested not once, but twice – in May 2010 and again in August of this year – for the same offense: possession of assault weapons. On both occasions, he was jailed, had to post non-refundable bail fees and was ultimately released when the same man, Senior Criminalist John Yount, determined that the firearms in Richards’ possession did not meet the state’s definition of an “assault weapon.” The San Francisco Weekly talked about the case here.

Named as defendants in the case are California Attorney General Kamala Harris, the California Department of Justice, the Sonoma County Sheriff’s Office and Deputy Greg Myers.

This could become an interesting case because of disclosures in the court documents. According to the lawsuit:

From February to May 2006, the California Department of Justice issued a series of memorandums that were obtained as part of a California Public Records Request…The memorandums are remarkable because:

a) The Department of Justice made changes to the various versions of this memorandum due to Jason Davis, then an attorney for the National Rifle Association, pointing out legal flaws in the various iterations.

b) In all versions of the memorandum, the Department of Justice directly conflicted the previously published Assault Weapons Information Guide by stating that owners of a firearm with features had to “permanently alter the firearm so that it cannot accept a detachable magazine.” “Permanent alteration” is not required in the Penal Code, the Assault Weapons Information Guide, or the then existing California Code of Regulations 11 C.C.R. 5469.

On or about May 10, 2006, DOJ counsel Alison Merrilees informed a member of the public that the DOJ wished to create a test case, “[w]e are eagerly awaiting a test case on this, because we think we’ll win.”

Be careful what you wish for…

SAF is joined in this lawsuit by the Calguns Foundation, which has assisted plaintiff Richards in the past with his legal bills. The Calguns Foundation has, according to the lawsuit, “defended many incidents of law abiding gun owners and retailers whose firearms were either seized, the individual was arrested and/or charged with violating (the) Assault Weapons Control Act.”

The lawsuit also includes this allegation:

Not only is the California Department of Justice claiming it has no duty to issue a clarifying bulletin to the State’s District Attorneys and Law Enforcement Community, on this issue; they have apparently engaged in a pattern of disinformation and confusion on the issue of whether a rifle fitted with a device that makes it incapable of accepting a detachable magazine is legal to own in California. It could be argued that California Department of Justice’s firearms division has created such a state of confusion that the entire statutory and regulatory scheme for defining California Assault Weapons is hopelessly, and unconstitutionally vague and ambiguous.”

All of this makes SAF founder and Executive Vice President Alan Gottlieb bristle. He says that to be arrested once for a law you didn’t break is an insult, but to have it happen twice is an outrage.

This could be one of the more significant lawsuits SAF has filed since its landmark Supreme Court victory in McDonald v. City of Chicago last year.

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